TERMS OF SERVICE
REAL ESTATE PHOTOGRAPHY LICENSING AGREEMENT
This Photographer Licensing Agreement (the “AGREEMENT”) is entered into effective this date, between (“PHOTOGRAPHER”) and (“CLIENT”). All references to the Client in this Agreement shall include Client’s parent companies, affiliates, and subsidiaries. The Client refers to the realtor on record for the duration of the listing of the property.
Scope of this Agreement:
This Agreement applies to any photographs, graphics, digital assets, or digital images or videos created or taken by Photographer and delivered to the Client (collectively known as “PHOTOS”) for the property (“PROPERTY”). This Agreement governs the relationship between the parties and in no event shall any e-mail communication or other exchange, amend or otherwise modify the terms of this Agreement unless agreed to in writing.
All Photos and rights relating to them, including copyright and ownership rights in the media in which the Photos are stored, remain the sole and exclusive property of the Photographer. This license provides the Client with the limited right to reproduce, publicly display, and distribute the Photos for promotional or advertising purposes directly related to the sale of the Property. Only Photos used for any purpose not directly related to the sale of the Property must be with the express permission of the Photographer and the payment of additional fees, unless otherwise agreed to in writing. Photos may be uploaded to any Multiple Listing Service (MLS) listing service solely for the promotion of the Property during the pendency of this Agreement. However, regardless of any terms and conditions of the MLS, at no time does this Agreement provide the Client with the right to transfer copyright, or any other exclusive rights as provided by the Copyright Act 17 U.S.C § 106. Photos may contain copyright management information (CMI) at the discretion of the Photographer in the form of either 1) a copyright notice © and/or 2) other copyright and ownership information embedded in the metadata or elsewhere, unless otherwise agreed to by the Parties. Removing and/or altering such information is prohibited and constitutes a violation of the Digital Millennium Copyright Act (DMCA) and the Client will be responsible to the Photographer for any penalties and awards available under the statute. The Client is responsible for ensuring that the Photos are removed from MLS databases at the expiration of this Agreement. Unless otherwise specifically provided elsewhere in this document or other signed agreement between the parties, any grant of rights is limited to a term of either one (1) year from the date of this Agreement, or (2) at the termination of Client’s (or a representative on behalf of the Client) representation of the Property, whichever occurs first. Further use of images beyond one (1) year requires Photographer’s permission and additional fees. Rights are assigned to the Client immediately upon delivery of the Photos.
Relationship of the Parties:
The parties agree that the Photographer is an independent contractor and that neither the Photographer, nor the Photographer’s employees or contract personnel are, or shall be deemed to be, employees of Client. No agency, partnership, joint venture, or employee-employer relationship is intended or created by this Agreement. Neither party is authorized to act as an agent or bind the other party except as expressly stated in this Agreement. The Photographer and the Photos or any other deliverables prepared by the Photographer shall not be deemed a work for hire as defined under Copyright Law. All rights granted to Client are contractual in nature and are expressly defined by this Agreement.
The manner and method of creating any photographs are solely at the discretion of the Photographer and the Client has no right to control the Photographer’s manner and method of performance under this Agreement. Photographer will use his/her best efforts to: (a) ensure that the Photos conform to Client’s specifications; and (b) submit all Photos to Client in publishable quality, on or before the applicable deadlines.
Photographer may select delivery of photographs in JPEG, TIFF, PNG, or other standard format, at a resolution that Photographer determines will be suitable for the Photos as licensed. It is the Client’s responsibility to verify that the Photos are suitable for reproduction and that if the Photos are not deemed suitable, to notify the Photographer with five (5) business days. Photographer’s sole obligation will be to replace the Photos at a suitable resolution but in no event will Photographer be liable for poor reproduction quality, delays, or consequential damages.
All fees and expenses payable under this agreement are required prior to the delivery of the Photos and payable irrespective of whether the Client makes actual use of the Photos.
The full $100 charge will be accepted as a late fee for cancellations within 24 hours. Late fees cannot be refunded or applied to future invoices. Cancellations within 48 hours: $50 will be charged as a late fee, the remaining $50 can be refunded. Cancellations prior to 48 hours will not incur any fees. RE-SCHEDULING: If the appointment is rescheduled within 24 hours (NOT CANCELED), then $50 will be charged as a late rescheduling fee, the remaining $50 will be applied to the invoice. A second late reschedule for an appointment (within 24 hours) will charge an additional $50 late fee. A third reschedule for the same event (EVEN IF IT IS BEFORE 24 HOURS) will require another booking fee. Rescheduling an appointment prior to 24 hours will not incur a late fee. Cancellation fees apply to rescheduled appointments. If the Client invokes a cancellation of services after the photoshoot, but before processing of the invoice and delivery of the photos, the Client will pay any expenses incurred and a 50% cancellation fee of the agreed-upon package, with a minimum fee of $100. DISCLAIMER: This policy is subject to change at any time without notice. All new appointments booked fall under the current cancellation policy enforced at the time of booking.
This Agreement does not create an exclusive relationship between the parties. The client is free to engage others to perform services of the same or similar nature to those provided by the Photographer, and the Photographer shall be entitled to offer and provide design services to others, solicit other clients and otherwise advertise the services offered by Photographer.
Transfer and Assignment:
The Client may not assign or transfer this agreement or any rights granted under it. No amendment or waiver of any terms is binding unless in writing and signed by the parties. However, the invoice may reflect, and the Client is bound by authorizations that could not be confirmed in writing because of insufficient time or other practical considerations.
The Client will indemnify and defend Photographer against all claims, liability, damages, costs, and expenses, including reasonable legal fees and expenses, arising out of the creation or any use of the Photos or materials furnished by Client. It is the Client’s responsibility to obtain the necessary model or property releases to ensure they are in full effect and in force.
This Agreement sets forth the entire understanding and agreement of the parties, and supersedes any and all prior agreements between the parties. This Agreement shall be governed and interpreted and enforced in accordance with the laws of the State of Rhode Island. Any claim or litigation arising out of this Agreement or its performance may be maintained only in courts physically located in Rhode Island, and the parties hereby consent to the personal jurisdiction of such courts. In the event of any litigation arising out of or relating to this Agreement, the prevailing party shall be entitled to recover its attorneys’ fees incurred in the litigation. If parties are unable to resolve the dispute by negotiation, either party may start mediation and/or binding arbitration in a forum mutually agreed to by the parties.
If one or more of the provisions contained in the Agreement is found to be invalid, illegal or unenforceable in any respect, the validity, legality, and enforceability of the remaining provisions shall not be affected. Such provisions shall be revised only to the extent necessary to make them enforceable.
No action of either party, other than express written waiver, may be construed to waive any provision of this Agreement and a single or partial exercise by either party of any such rights or remedies will not preclude further exercise of other rights or remedy.